Dixon v. State

• Decision Date: 04 November 1991
• Docket Number: No. 12-89-00111-CR,12-89-00111-CR
• Citation: 828 S.W.2d 42
• Parties: Ricky D. DIXON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 42

828 S.W.2d 42

Ricky D. DIXON, Appellant, v. The STATE of Texas, Appellee.

No. 12-89-00111-CR.

Court of Appeals of Texas Tyler.

Nov. 4, 1991.

Discretionary Review Refused Feb. 26, 1992.

Ebb Mobley, Longview, for appellant.

C. Patrice Savage, Longview, for appellee.

RAMEY, Chief Justice.

Appellant was convicted on his plea of guilty to the charge of delivery of a penalty group I controlled substance. Punishment was tried to a jury and was assessed at twenty-five years in prison. We will affirm.

Nine points of error are raised on appeal. In his first three points appellant contends that the trial court erred in not quashing the jury panel after the prosecutor exercised two peremptory challenges against black members of the venire. He argues that the prosecutor exercised his peremptory strikes solely on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). ¹

The record reveals that appellant is a black man. The strike range in this case covered venire members one through thirty-six. Within that range there were three black potential jurors, No. 3: Karen Isaac, No. 5: Abner Harris, and No. 22: Clarence Bowie. When voir dire began, juror Isaac was not present. The prosecutor questioned the panel and explained his version of the case. There was little questioning of individual venire members by either party. Some fifteen or twenty minutes after the prosecutor's voir dire began, Isaac arrived in court. The prosecutor briefly questioned her about the range of punishment, specifically mentioning probation and appellant's lack of prior felony convictions. He had previously questioned the other members of the panel on those subjects.

During the appellant's voir dire, in response to an inquiry about whether anyone on the panel knew appellant's family, juror No. 22, Bowie, responded that, "I know his mother real well."

Following the parties' exercise of their peremptory strikes, appellant moved to have the jury panel quashed on the basis of Batson. The prosecutor was called to the stand by appellant. He testified that there were three black members of the venire within the strike range and that he had used nine of his ten peremptory challenges, including two against black members of the venire, Isaac and Bowie. Although appellant asked the trial court to take judicial notice of the strike lists, and the court agreed to do so, those lists are not in the record on appeal. At that point the appellant announced to the court that he rested on his prima facie case.

The prosecutor then testified that Isaac was the juror who had arrived fifteen or twenty minutes late and had missed most of his voir dire. He listed several reasons for striking Isaac, including her tardiness ("that is not a good indication for a strong State's juror for somebody that cannot even find the Courtroom at the time she's supposed to be there"), her age (twenty-one) being "younger than I would like to have on a jury, especially one where I'm looking for a strong punishment", her status as a single mother of a five year old child, her written representations on her jury card of no occupation, no employer, no present job, no duties or responsibilities, and her church preference as being Pentecostal. The prosecutor's rationale as to Isaac's religion was, "Helping me on my strikes was Ms. Becky Simpson, also Assistant District Attorney here in Gregg County. She talked to me about her experiences with jurors of the Pentecostal religion. She informed me that she has never taken a Pentecostal juror, that she has talked to jurors afterwards--or potential jurors, and they are very hesitant to render judgment on other persons. And that's not the type of religion I would want to have on the Jury, especially punishment type of jury, which I am attempting to go through at this time."

As to Bowie, the prosecutor testified that he had no complaint of this person as a juror until he stated that he knew the appellant's mother very well. He said until that response, he had intended to keep Bowie on the jury. However, in light of the trial being only on the issue of punishment, and the state seeking "stiff punishment", the prosecutor said that, "because of the fact he knows the [appellant's] mother very well, would probably be less inclined to give the [appellant] as stiff a punishment had he not known the [appellant's] mother so well."

On cross examination, the prosecutor testified that Isaac's marital status was not the sole reason for striking her; it was also her being unmarried with a young child. He indicated that he reviewed the venire list; he did not identify anyone else within the strike zone that was single with a child. Furthermore, he said that he had found no one else within the strike zone that was unemployed or of the Pentecostal religion. No additional evidence was offered by either side. Both rested.

In overruling the motion to quash, the trial judge said:

"The strike as to Jury Panel Member number 3, Karen Denise Isaac, was based on a number of factors stated in this record, including the fact that juror was at least fifteen minutes finding this Courtroom, which is not a sign of paying attention or being ideal for deciding someone's fate, together with being a single parent, unmarried, and not employed. All of those are deemed, I believe, by the law to be valid factors in the use of a strike. And it was not based upon the race of the prospective [sic] juror. Number 5, Abner J. Harris, is a black female who was not struck by either the State or the Defendant. Then 22, Clarence Bowie, the reason stated is that he knew the Defendant's mother. And the only contested issue in this case being the proper punishment, this being a plea of guilty to the Jury, that would seem to be a proper factor that he might find himself in that position of being difficult to render a judgment in the high end of punishment because of that acquaintanceship with the Defendant's mother. And for that reason, it appears that the strike is not based at all on the race of Jury Panel Member Number 22."

In order to invoke the protections promised by Batson, a defendant must establish a prima facie case of discrimination. This he can do by showing that he is a member of a cognizable racial group, that the prosecutor exercised peremptory challenges to eliminate members of the defendant's race from the jury, and any other facts or circumstances raising an inference of discrimination in the exercise of peremptory strikes. Tennard v. State, 802 S.W.2d 678, 679 (Tex.Cr.App.1990). Once the defendant has done that, the burden shifts to the state to articulate a neutral explanation for exercising its peremptory strikes. Lewis v. State, 815 S.W.2d 560, 563 (Tex.Cr.App.1991). However, the ultimate burden of production and persuasion remains with the defendant to show by a preponderance of the evidence that the allegation of purposeful discrimination is true. Williams v. State, 804 S.W.2d 95, 97 (Tex.Cr.App.1991); Tennard, 802 S.W.2d at 681.

On appeal, we employ a "clearly erroneous" standard of review. If the trial judge's findings are supported by the record, they will not be disturbed by this Court. Hernandez v. State, Slip op. at 17, 819 S.W.2d 806, ---- (Tex.Cr.App.1991); Tennard, 802 S.W.2d at 681. We must determine whether, after viewing the record in the light most favorable to the trial court's ruling, the racially neutral explanations offered by the State have been overcome by the defendant. Williams, 804 S.W.2d at 101.

Keeping in mind that the trial was for the sole purpose of determining punishment, we conclude that the record does support the trial judge's decision that the appellant had not shown by a preponderance of the evidence that the prosecution's peremptory strikes against venirepersons Isaac and Bowie were the consequences of purposeful discrimination. The record shows that of the thirty-six venirepersons within the strike range, three were of the same race as appellant. Of the twelve jurors impaneled on the petit jury, one was black. Thus, the same proportion of blacks was ultimately seated on the jury as was available from the venire. The prosecutor did not exercise all of the strikes allotted to him.

As to Isaac, the prosecutor's articulated reasons for striking her are supported by the record. Her tardiness in appearing is evident. Although appellant criticizes the prosecutor's statement that "she could not even find the Courtroom at the time she's supposed to be there," ² the point of the prosecutor's objection to her was that her tardiness suggested that she would not be a good juror for the state. Another explanation offered by the prosecutor for striking Isaac was her youth. Age has been recognized as a legitimate reason for striking a potential juror. See Silva v. State, 800 S.W.2d 912, 915 (Tex.App.--San Antonio 1990, no pet.); Moss v. State, 790 S.W.2d 731, 732 (Tex.App.--Houston [14th Dist.] 1990, no pet.). Her status as a single mother with a young child, standing alone, is not discriminatory. The appellant has not shown that any other single mothers were on the panel. Even if the strike for this reason was based upon a hunch, strikes may permissibly be based upon the prosecutor's hunches and past experience, so long as the actual motive is not racial discrimination. Keeton v. State, 749 S.W.2d 861, 865 (Tex.Cr.App.1988). Lack of employment, also given as a reason for striking Isaac, has been recognized as a legitimate basis for striking a potential juror. See Hernandez v. State, 808 S.W.2d 536, 544 (Tex.App.--Waco 1991, no pet. hist.); Silva, 800 S.W.2d at 914-915. The final reason offered by the prosecutor for striking Isaac was her Pentecostal religion. His explanation was predicated upon advice from his co-counsel. The explanation was related to the purpose of the trial, i.e., judging and punishing appellant. We find that the prosecutor stated racially neutral reasons for...